"The Law Governing the Use of Force in Texas. When Can It Be Used? When Can It Not Be Used?"
Public officials and ordinary citizens in Texas are allowed to use force in many instances. This research paper examines the instances when the use of force is justified by the law and when it is prohibited by the law. For the purpose of this research, the word "actor" identifies the person using the force.
"A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force" (Penal Code 9. 31). Force may also be used to prevent an attacker from committing aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery (Penal Code 9. 32).
This justifies the use of force in self-defense. However, force may not be used as a self-defense in the following instances: 1. in response to verbal provocation alone 2. if the actor consented to the exact force used or attempted use of unlawful force.
3. if the actor provoked the other's use or attempted use of unlawful force. 4. to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and his direction, even though the arrest or search is unlawful (Penal Code 9. 31). There are two exceptions to the last item listed above.
The use of force is justified if the peace officer uses or tries to use force greater than that necessary to make an arrest or a search. It is also justified when the actor believes the force is necessary to protect himself against the peace officer's use of force greater than necessary (Penal Code 9. 31). A person may also use force to protect a third person if the actor believes the force is necessary to protect the welfare of the third person (Penal Code 9. 33). Force can also be justifiably used in the protection of one's own property.
A person who legally owns land or tangible, movable property is allowed to use force to prevent or terminate another person's trespass on the land or unlawful interference with the property. If I am at home having dinner with my family, and a person drives into my driveway and enters my house I have the right to use any amount of force I feel is necessary to get that person out of my property. Furthermore, when a person's land or property is dispossessed by another, the owner has the right to use force if it is necessary to reenter the land or recover the property. But, the actor must reasonably believe that the other person had no claim to the property or land, and be aware that the other person dispossessed him by using force, threat, or fraud (Penal Code 9.
41). A person is also justified in the use of force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or to stop someone fleeing immediately after committing the activities already mentioned. The person using force must be able to justify that the land or property could not be protected or recovered by any other means (Penal Code 9. 42). A person can also use deadly force to protect the land or tangible, movable property of a third person. The person using force must believe that the third person has asked him to protect the land or property.
This is justified is the third person is his spouse, parent, or child, lives with him or is under his care (Penal Code 9. 43). The use of force is justified during an arrest or a search by a peace officer or person acting in a peace officer's presence and at his direction. Force is allowed in making an arrest or a search, or to prevent or assist in preventing escape after arrest, if: 1.
the actor reasonably believes the arrest or search is lawful or, if the arrest or search is made under a warrant, he reasonably believes the warrant is valid; and 2. before using force, the actor manifests his purpose to arrest or search and identifies himself as a peace officer or as one acting at a peace officer's direction, unless he reasonably believes his purpose and identity are already known by or cannot reasonably be made known to the person to be arrested. 3. the actor reasonably believes the conduct for which arrest is authorized included the use or attempted use of force, or 4. the actor reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to the actor or another if the arrest is delayed (Penal Code 9. 51).
A person is justified in using force against a child under the age of 18 if that person is the child's parent, stepparent, or is acting in loco parents. This includes a grandparent, guardian, or any other person with legal jurisdiction over the child and anyone who had implied or expressed consent of the parent or parents. Force against a child can also be used when it is necessary to discipline the child (Penal Code 9. 61).
The use of force by an educator against a student is justified by Section 9. 62 of the Texas Penal Code. It reads: "The use of force, but not deadly force, against a person is justified: 1. if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and 2. when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group" (Penal Code 9. 62).
In the case of a mentally incompetent person, force is allowed "if the actor is the incompetent's guardian or someone similarly responsible for the general care and supervision of the incompetent." The force must also be applied to protect the incompetent person's welfare. If the incompetent person is in an institution for his care and custody, force may be utilized to preserve discipline in the institution (Penal Code 9. 63). In correctional facilities, force may be used to maintain security. "An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security" (Penal Code 9.
53). Guards employed by a correctional facility and peace officers may use force, including deadly force, if it is immediately necessary to prevent the escape of a person from the correctional facility (Penal Code 9. 52). A person has a right to use force against another person to protect the life and the health of that person. This applies to instances when a person is committing suicide or is "inflicting serious bodily injury to himself." During an emergency, a person is also allowed to use force to protect another's life (Penal Code 9. 34).
A peace officer may also use force to prevent a person from injuring himself, another person, or the property of another person. The peace officer may use only as much force as is necessary to prevent the offense, but may not use more. Furthermore, the peace officer may request the assistance of the citizens of his county in the use of force (Code of Criminal Procedure Art. 6. 06). Another instance in which force may not be used is for the purpose of marriage.
A marriage is considered void and subject to annulment if one of the parties uses force to coerce the other party into marriage (Family Code Sec. 2. 44). Finally, the law states that force may not be used to deprive any person of a legal right or disturb any person in the enjoyment of a legal right (Title 9. Offenses).
This research paper presents a small portion of the laws regarding the use of force in Texas. The use of force is a right every citizen should use to protect the welfare of himself, his family, and everyone else. However, like any other privilege, the right to use force can be abused. These laws outline how and when force may be used in a legal and moral manner.